The expectation of justice as a consequence of law has perplexed me during my professional career as a judge, litigator, advocate and counselor. More often than not law and justice seemed inopposite.
My difficulty in reconciling my feelings about the concepts of law and justice became focused when a friend, untrained in the profession of law, propounded to me the question, "What is the purpose of law if not to increase justice?".
I attempted to reconcile the concepts of law and justice and struggled to answer the question.
A conversation reported to have occurred between U.S. Supreme Court Justice Oliver Wendell Holmes and U.S. Circuit Court of Appeals Justice B. Learned Hand, at the time sitting on the Second Circuit Court of Appeals in New York, emphasizes a dilemma which has concerned me for sometime.
Justice Holmes and Justice Hand, had lunch together. Afterward as Hand exited Holmes’ carriage and Holmes began to drive off, Hand, in a sudden onset of enthusiasm, ran after him, crying:
"Do justice sir, do justice"; to which Holmes stopped the carriage and reproved Hand:
"That is not my job. My job is to apply the law."
We have a refined body of law, trained advocates and judges to adjudicate disputes. The adjudication of disputes is a search for certainty based upon the expectation that a particular result will occur under a given set of circumstances.
The result may or may not be what one ought to do or ought not to do, but rather that which is acceptable and received with approval by society consistent with the standards established by society. Whether the adjudication of the dispute by a system based upon law attempting to determine truth, fact or reason is justice begs the question.
The words law and justice mean different things to different people. I determined that responding to my friend’s question requires analyzing the distinction, if any exists, between the concepts of justice and law, in order to respond to the question. The following is my approach and analysis of whether law and justice are synonymous, included or excluded or subsumed by the other.
SOURCES OF LAW
The several sources of law in the United States of America are: (1) the constitution of the United States of America, whereby the sovereign states granted authority to the federal government for certain actions; (2) the constitutions of sovereign states limiting the authority of that state government to certain actions by that state government; (3) statutes enacted by the Congress of the United States of America and approved by the president or statutes enacted by the legislature of a sovereign state and approved by the executive officer of the state; (4) ordinances regulating conduct of citizens by a local government having the authority to impose sanctions; (5) decisions of judges based upon the constitutions, statutes, ordinances or prior judicial decisions; or (6) decisions of judges based upon custom or tradition.
The several sources of the meaning of justice are: (1) theology; (2) philosophy; (3) natural rights independent of laws created by society that impose sanctions; and (4) obligations and duties which supply their own sanction and need no standard or societal norm.
Political documents adopted by society establishing general standards of conduct are contained in a constitution, statutes, ordinances, custom or tradition and are known as law. The law thus established by society subordinates individual personal standards, beliefs, biases and prejudices.
The society that established the law also creates a legal system. The legal system empowers judges with the authority to enforce societal standards by imposing sanctions.
The sanctions imposed by the decisions of judges are strengthened by the acquiescence of society to adjust conflicting claims through an orderly process and the assignment of compensation, rewards, privileges, entitlements, status, liberty or reallocation of assets, withdrawing privileges, imposing discipline, exacting retribution, administering punishment or in some instances terminating life.
Adjudication of disputes in an organized society by courts is the product of a system that provides authority and power to compel compliance with the law. Compliance is based upon the expectation for a reasonable degree of certainty and predictability in the decisions of judges and juries as the adjudicators of disputes.
THEORIES OF LAW
There are several theories of law. Chief among the several theories are: (1) Positive Law; (2) Natural Law; and (3) Sociological or Historical Law. The three principal theories have significant differences.
The adherents of Positive Law suggest law is a product of the state, independent of justice and that conformity is obligatory because of the need for an orderly society, the command of the sovereign power and the sovereign power’s ability to impose sanctions.
The adherents of Natural Law suggest that law preceded the existence of the state, based on a natural right to render to each his due, is cognizable by pure reason, and that which is not right is not law.
The adherents of Sociological Law suggest it is formulated by human beings, that justice and law are social products, developing in tandem, which imposes a moral duty based on the social good, not primarily dependent on legal sanctions, and that social custom or tradition impact the relationships of people each to the other.
OUR LEGAL SYSTEM
There is a dual legal system in the United States. A federal legal system was created by the Constitution of the United States and a separate state legal system was created by the individual constitution of each state. The federal legal system was further developed by the Congress adopting statutes and adopting regulations for federal agencies. Each state’s legal system was further developed by that state’s legislature adopting statutes and it’s local governments adopting ordinances.
Federal judges and state judges interpret the constitutions, codes, statutes and ordinances. In some instances, decisions are based on custom or tradition limited by the applicable constitutions.
Each legal system created by legislative bodies whose statutes and ordinances are interpreted and given meaning by judges include sanctions for exceeding the norm or standard established by the legislative body. That is how the legal system is given effect.
A legal system based upon justice would need no norm or standard and could always be replicated to recognize what one ought to do or what one ought not to do.
The delegates who met and created the U.S. Constitution were of different persuasions, different interests, with personal biases and prejudices. The literature concerning the debates, compromises and reports of the federal constitutional convention reflect the considerable philosophical differences of the delegates and the compromises reached to develop a document capable of being approved by a sufficient number of states.
The member-delegates to the 1969-1970 Sixth Illinois Constitutional Convention probably were not much different than the delegates to the federal convention.
Each document was the result of compromise and political expediency not entirely the product of reason. The delegates in each instance came with different persuasions, different interests, personal biases and prejudices concerning the structure of government and its relationship to those being governed including the tripartite theory of three branches of government. The biases and prejudices were not malevolent but only a product of their individual experiences, education and philosophy of government and its relationship to those governed.
THE 1970 ILLINOIS CONSTITUTION
Consider the 1970 Illinois Constitution as the foundation for the Illinois legal system in the context of law and justice. I was an elected member of the 1969-1970 Sixth Illinois Constitutional Convention and appointed to the Committee on Style and Drafting. The Report of Proceedings, Volumes I through VII, 1969-70 Sixth Illinois Constitutional Convention, contain proposals by various members, committees and verbatim transcripts of all sessions.
The Report of the Committee on the Bill of Rights presented a Preamble, Report of Proceedings, 1970 Illinois Constitutional Convention, Vol. VI, Page 14, to the proposed 1970 Illinois Constitution essentially identical to the Preamble subsequently adopted for inclusion in the 1970 Illinois Constitution. Each included the clause "...assure legal, social and economic justice;...". The written explanation of the Preamble in the Report of the Committee on the Bill of Rights stated "...a Preamble is hortatory in nature and does not create any substantive rights,...", Report of Proceedings, 1970 Illinois Constitutional Convention, Vol. VI, Page 15. Proposal No. 1 of the Report of the Committee on the Bill of Rights, including Majority and Minority Proposals, Report of Proceedings, 1970 Illinois Constitutional Convention, Vol. VI, Pages 1-197, and the Report of the Committee on Style and Drafting to the Report of the Committee on the Bill of Rights, Report of Proceedings, 1970 Illinois Constitutional Convention, Vol. VI, Pages 199-221, Proposal No. 1 of the Report of the Committee on the Judiciary, including Majority and Minority Proposals, Report of Proceedings, 1970 Illinois Constitutional Convention, Vol. VI, Pages 797-1192, and the Report of the Committee on Style and Drafting to the Report of the Committee on the Judiciary, Report of Proceedings, 1970 Illinois Constitutional Convention, Vol. VI, Pages 1193-1291, and the verbatim transcripts, Report of Proceedings, 1970 Illinois Constitutional Convention, Vol. II through Vol. V, do not contain explanations, reasons, or references to justice or include justice as a integral component of law or the organization of a legal system. There were some references to justice which will be discussed below.
Proposal No. 1 of the Report of the Committee on the Bill of Rights and the written explanation included rights of citizens and limitations on government in its conduct with citizens such as Due Process and Equal Protection, Religious Freedom, Freedom of Speech, Trial by Jury, Searches, Seizures, Interceptions and Privacy, Bail and Habeas Corpus, Indictment, Rights After Indictment, Self Incrimination and Double Jeopardy, Limitations of Penalties After Conviction, Imprisonment for Debt, Right of Eminent Domain, Ex Post Facto Laws and Impairing Contracts, Subordination of Military Power, Quartering of Soldiers, Right to Assemble and Petition, Elections, Right to Remedy and Justice, Fundamental Principles, Rights Retained, Discrimination, Preliminary Hearing, Public Employees, Basic Needs, Individual Dignity and Right to Arms. Proposal No. 1 of the Report of the Committee on the Judiciary and the written explanation included the geographical division of the state for court activity, organization of the Illinois Supreme Court and Appellate Court, the jurisdiction of the several levels of the Illinois three tiered court system, the terms of office for Supreme, Appellate, Circuit and Associate Circuit Court judges, eligibility of persons to be elected or appointed judge, the method of selecting judges by election or appointment, the requisite extraordinary majority required for the retention election of judges, authority for the adoption of rules of conduct for judges, retirement and discipline of judges, and other administrative provisions.
Article I, Section 8.1, (a)(1) Crime Victims Rights of the 1970 Illinois Constitution, as amended effective November 3, 1992, states as follows:
"The right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process."
The "...criminal justice process." is the legal system developed and established to adjudicate an alleged violation of the standards of conduct, commonly called the "criminal code", created and enacted by the legislative and executive branches of government.
Article I, Section 12, Right to Remedy and Justice, of the 1970 Illinois Constitution, states as follows:
"Every person shall find a certain remedy in the law for all injuries and wrongs which he received to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly."
The reference to justice in the last sentence of Section 12 refers to the availability of a process to adjudicate a dispute in accordance with the law and the legal system enacted to enforce the law.
The written explanation of the Report of the Committee on the Bill of Rights made no reference to the meaning of the word justice nor did it explain whether law was subsumed by justice or whether it was the duty, obligation or purpose of law to increase justice.
The plain and ordinary meaning of "obtain justice by law" affirms that justice, in this sense, is what the law determines it to be. This is dissimilar to the meaning of justice by doing what one ought to do or not to do except in the sense of obedience to the law.
The statement of Associate U.S. Supreme Court Justice Potter Stewart in a concurring opinion in Jacobellis v Ohio, 84 S. Ct. 1676, 378 U.S. 184 may provide assistance to understand the difficulty of looking to the purpose of law to increase justice.
Justice Stewart, in attempting to determine whether a particular motion picture was obscene and referring to prior decisions of the U.S. Supreme Court, wrote:
"... I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable...But I know it when I see it, and the motion picture involved in this case is not it...."
Although those trained in law, philosophy, theology and ethics discuss the relationship of their discipline with the others, they often do not reach a conclusion acceptable to all; even though the common man does not hesitate to use the term "justice" in discussing whether a course of conduct or action or adjudication of a dispute is just without defining what it is that is contrary to approval by all of society.
The words of U.S. Supreme Court Justice Blackman about the beginning of life are instructive to consider when we look to law to determine the meaning of justice.
Justice Blackman said in Roe v Wade, 410 U.S. 113, 159, Reh’g denied 410 U.S. 959 (1973).
"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at a consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer."
In my opinion, an attempt to define justice, which may be indefinable, must consider that universal quality of having a basis in or conforming to fact, truth or reason and being impartial or fair. Justice gives understanding to the nature of humankind and humankind’s response to particular situations. Justice is that which causes a person to reflect upon the consequences of that person’s actions upon others.
When the plea for justice is invoked during a judicial proceeding to determine a cause of action, in either criminal law or civil law, the pleader often seeks an adjudication of the dispute favorable and satisfying to the pleader to whatever circumstance gave rise to the judicial proceeding. Whether a given adjudication of a dispute or cause of action results in justice could be construed differently depending upon one’s interest in the outcome.
Sometimes justice occurs when a dispute is resolved through the adjudicative process. The possibility of what is perceived as justice produced as a consequence of law as established in this country, being the adjudication of disputes, is a fortuitous event unplanned and unexpected. When such justice does occur within the current legal system it appears to be a by-product, not the purpose, of the process.
Conceivably, in seeking to understand the relationship between law and justice, the best way may be that of the Natural Law theorists who espouse that conduct must conform to the righteousness of the law and deny that justice can be equated with lawfulness or legality. This approach, however, leaves a certain amount of uncertainty. In the judicial adjudication of a dispute the universal approval of the result of what one ought to do or ought not to do, premised upon the same or similar set of facts, lacks the expectation of predictability .
Perhaps society, through the legislative process, should not consider whether the adjudication of a dispute is justice until such time as philosophers, theologians and ethicists address their concerns to the conduct of society in general and agree on a meaning for justice other than establishing a minimum standard of conduct that is acceptable. Maybe those professionals will be able to rationalize the concept of justice to provide a probability of predictability.
ADJUDICATION OF A DISPUTE
An examination of the oath prior to testifying in a legal proceeding should be considered as it impacts the inquiry whether the purpose of law is to increase justice. The oath of all witnesses testifying in a trial of disputed issues requires them to "...tell the truth, the whole truth and nothing but the truth...". A witness responding to a question, under the rules of evidence established by the legislature or by judges, gives an answer which may be true as far as what was said. For whatever reason the question was probably phrased to elicit the particular response from the witness. Is that response the truth? It may be only a partial truth. It is not the whole truth. The whole truth may have included a response which was not helpful to the cause of the person who propounded the question. Often a witness will elaborate in a response. Not because the witness intends to lie but only because the witness believes what he says to be true but in fact it was not true. That’s more than the truth. A decision is then made by a person or persons who are not infallible and are unable to distinguish what is the truth, the whole truth and nothing but the truth.
One anecdote concerning a result of the legal system may illustrate the inadequacy of expecting the purpose of law to increase justice. There was no reported case by the Illinois Supreme Court addressing the resolution of a particular issue. The issue was presented to a trial court judge. The trial court judge in order to reach a decision determines the applicable facts and applies the law to those facts. The Appellate Court, as a reviewing court, with some exceptions, is bound by the facts determined by the trial court judge. The reviewing court is limited to considering whether the law was appropriately applied to the facts determined by the trial court judge. The trial court judge decided the issue in dispute. The party against whom the issue was adversely resolved by the trial court judge appealed to the Appellate Court.
A panel of 3 judges in the Appellate Court consider and decide an appeal. A panel reviewed the written briefs, written arguments and listened to the oral arguments of the respective attorneys. After listening to oral arguments the three judges in consultation with each other with regard to the law agreed on a decision contrary to the decision of the trial court judge. A unanimous decision by the Appellate Court reversed the decision of the trial court judge. That’s 3 appellate judges to 1 trial judge.
The decision of the Appellate Court was appealed to the Illinois Supreme Court. There are 7 judges on the Supreme Court. A decision by the Supreme Court requires a concurrence by a majority of the 7 judges. The Supreme Court reversed the decision of the Appellate Court by a 4 to 3 majority. The issue was supported by 3 Appellate judges and 3 Supreme Court judges. The contrary result was supported by one trial judge and 4 Supreme Court judges. That was 6 judges to 5 judges. The adjudication of this dispute resulted in someone winning and someone losing. It is difficult to say whether the result according to law was justice.
Law in the United States is based upon individuals in a society being willing to deprive themselves of the power to engage in certain individual conduct and subordinating their individual power to a governing authority structured by constitutions, legislation, and decisions of judges.
The constitution and legislation impose standards of conduct.
Decisions of judges enforce those standards under a legal system with the authority to compel obedience to those decisions. Our legal system is the authority to whom society has given that power to enforce or compel obedience to the established standards of conduct. Those standards of conduct are necessary for people to live together in a social order, settle disputes, organize a government to guide the population and to enforce the standards of conduct. Our legal system punishes those persons who deviate from the established standards of conduct. The authority to compel obedience takes its strength by imposing sanctions for failure to comply with those standards, to take property or money from some, to award property or money to others, to grant rights or privileges to some but not all, to deny rights or privileges to some but not all, and in some instances to take freedom by incarceration or to take the life from some individuals.
Law proclaims the rights and duties of individuals within the social order but does not establish or define the social order. It is our fervent hope and expectation that those who enact the standards of conduct do so with insight to establish standards of what one ought to do or what one ought not to do, but that is not borne out by reality.
The constitutional representative form of our federal government was a grant of authority for federal activity based upon the several sovereign states relinquishing certain absolute power of its citizens to the federal government. It was anticipated that the elected legislative body and the elected executive would be the authority to determine the standards of conduct for its citizens in the common interest of peaceable commerce among the citizens and sovereign states. The constitutional representative form of our state government, patterned on the tripartite federal government, was a limitation on the authority of the state to act in relation to its citizens.
We have transcended that concept, from time to time, by judicial fiat establishing standards of conduct.
An argument is sometimes made that the United States Supreme Court is the final arbiter of justice. The Supreme Court has the power to declare acts of the Congress and acts of the President contrary to the Constitution, Marbury v Madison, 1 Cranch 137 (1803), to interpret the Constitution consistent with the intent of the language of the Constitution, and, where a federal issue is involved, to assert jurisdiction over state courts.
It is my opinion, based on my years of private practice and public service, that:
Justice cannot be declared by judicial fiat within a legal system.
Justice is transitory when the adjudication of a dispute is consistent with one person’s preconceived concept of a desired result, but is inconsistent with another person’s concept of a desired result.
Justice requires a fundamental understanding and uniform result desired by all.
Justice is considered a special virtue of what is the just thing to do in the circumstances of actual life or as a directive for acting toward each other to do or not to do something that concerns the other, the performance of which elicits approval. The source of the approval may be from another person or society in general.
Justice, sometimes, is described or defined as the imposition of obligations or duties which supplies its own sanction and needs no norm or standard by which it is to be measured. In each such instance a range of meaning is expressed in which precision is transitory. The dilemma becomes acute in attempting to reconcile the objectivity of Positive Law, or the objectivity/subjectivity of Sociological Law, and the subjectivity of Natural Law.
The expectation that the purpose of law is to increase justice creates an ambiguity.
Law and justice are not mutually inclusive as the adjudication of a dispute may be perceived by some people in a given society as justice, while others could perceive the adjudication of the same dispute as injustice.
Our society has authorized persons trained in law to advise, counsel and represent differing pecuniary interests to resolve disputes through an adjudicative process; and untrained jurors, rather than philosophers, theologians and ethicists, to define and adjudicate disputes.
Our society’s federal and state legal/justice systems cannot make one a better person or make one lead a better life. They can only provide the conditions that are minimally necessary to live an orderly life.
Honorable Anthony M. Peccarelli is a former Second District Appellate Court Justice, Chief Judge of the Eighteenth Judicial Circuit, and DuPage County State’s Attorney. He received his Undergraduate Degree in 1953 from Beloit College and his Law Degree in 1959 from John Marshall. He has received numerous civic and legal achievement awards.